Saturday, June 30, 2007

Freedom to Reject the Best

Published by the Ludwig von Mises Institute:

The Freedom to Reject the Best
by Jim Fedako

Digg it!

A new study suggests that private schools are not inherently better than public schools. Surprised? Enough people were such that the study, funded by the US Department of Education, has created a stir in the education arena, as well as in the national news. But I want to argue that the results are meaningless, and for reasons not having to do with the methodology employed in the study.

The authors of Comparing Private Schools and Public Schools Using Hierarchical Linear Modeling analyzed math and reading scores of nearly 7,000 public schools and more than 500 private schools on the 2003 National Assessment of Educational Progress at the fourth and eighth grades. NAEP was the chosen assessment tool since it is considered to be the national achievement test and is used to assess student academic performance against national standards.

Though the title sounds impressive, the findings simply suggest a conclusion. Nothing has really been proven and no new truths exposed. I could begin by questioning the whole concept of empirical studies that suggest this or suggest that. I could ask, "What truths have been brought to light by any study that is couched in such a vague qualifier?" I could attack all the assumptions that went into the model and then list those that did not. Had I gone that route, I hopefully would have raised enough doubt in the reader that the study would be discarded as worthless.

But the real error here is more philosophical than empirical. Studies such as these simply show that a deeper ill exists, a malaise caused by government interventionism.

Consider Consumer Reports

The popular magazine reviews consumer goods based on a proprietary set of standards. They test, analyze, test, analyze, etc., until they are satisfied as to the quality of the products under review. CR then assigns individual product ratings and notes one product as a best buy. Though most Americans accept CR's results as being of excellent quality, the noted best buy is not usually the market best-seller. Yes, I will occasionally look at CR prior to purchasing a good, but I almost never buy the best buy. I agree that the CR results are scientifically valid based on their standards, but that doesn't mean I am in the market for the scientifically valid, CR best-buy product.

Though it may only last six months, I want the new hairdryer complete with the latest features, bathed in the hottest colors. That's my choice. My preference rank for features and colors is above that for durability. Who is to say that I am wrong? In a free market, anyone. But, they cannot force me to act otherwise.

What would happen if Consumer Reports had legislative and regulatory authority akin to government? We would all be forced to purchase the best buy and we would all spend our lives unsatisfied. On the surface it sounds great to have a leading research organization controlling the market for "the general good and welfare," but consider your own actions vis-à-vis CR's best buys.

The same holds for a government-run education system. Even if the federal government mandated a set of standards that were scientifically valid according to the DOE national outcomes, the set of standards and outcomes would not be the standards and outcomes most Americans would choose as acting individuals.

Scientific research can create goods that are bigger, smaller, faster, slower, etc. But just because research can create the good doesn't mean that there is a market for it. No one wants a hypodermic needle that is rougher, wider, longer, etc. The superlatives associated with improvements and innovations from scientific research are not always desired by consumers.

In education, the best that DOE could be is a truly benevolent authority. It could gather the nation's greatest thinkers to divine standards of education outcomes and employ the top psychometricians, statisticians, etc., to create assessments that are mapped to those standards. At its hypothetical best, this brain-trust would simply function as CR does in the products market. The assessments would be scientifically valid and could rank achievement and note the educational best buy — based on the arbitrary set of DOE standards. But parents and students, as well as community members, teachers, and radicals, etc., would be unsatisfied; just as the consumer would be unsatisfied having to always purchase the CR best buy.

So, what's the solution? Simply, let the market reign. [1] A free market system of education would create for those who seek different options a system that encourages the implementation of the spectrum of educational choices — best viewed as experiments, just as each new product, service, store, etc., is a market experiment. The successful experiments become the market standard that new entrepreneurs seek to surpass.

These choices would involve all aspects of education — including pedagogies, methodologies, etc. — which would afford all parents the ability to satisfy their desires for their children's education. Each idea would be evaluated by the parent, the education consumer, ex ante over the summer according to individual preferences and ultimate goals, and once again ex post at the end of each school year.

Parents would choose their standard of results and they would seek out entrepreneurs who would then hire teachers and administrators that could deliver the parents' vision. The entrepreneurs would purchase products to implement the vision and the science community would be engaged to improve old products and innovate new ones — all due to the market pressures of the freely acting parents, the consumers. This is the proper direction of improvements and innovations, from the consumer back to the scientist, engineer, researcher, etc.

The standards set by the parent would drive the research that would deliver the product, not the reverse. [2] Currently we have a system where the standards are set by a myriad of governments and agencies — standards no one wants or agrees with — and we have a spectrum of research whose real goal is to drive the standards and grab the tax dollars.

There are scientific winners in the field of the delivery of quality, basic education, such as Direct Instructions, etc., but we know a significant number of parents, teachers, and administrators don't give a hoot about reading, writing, and arithmetic. They want affective learning — the feel-good, Progressive educationist-babble currently in favor — and long for the ideal child, the product of the latest version of Trotsky's proletarian paradise .

I disagree with them, but their solutions may actually end up being correct, or they will fail. Only a market can show whether a solution is right or wrong.

That said, we have to keep in mind that Consumer Reports creates valid ratings that we mostly ignore, and we are all better off because we continue to make our own choices. Our individual wants drive improvements and innovations to provide for our greater satisfaction. Why should education be any different?


Jim Fedako, a former professional cyclist who lives in Lewis Center, OH, is a member of the Olentangy Local School District and maintains a blog: Anti-Positivist. Send him mail. Comment on the blog.


[1] The free market is the only economic system where we can disagree yet live peacefully. My wife likes Coke while I prefer Pepsi. In fact, I'd rather drink a glass of baking soda than a glass of Coke (OK, a little hyperbole for effect). Due to the free market in soft drinks, my wife and I can live happily ever after. Under interventionism, or plain socialism, the fight becomes which bland flavor will be served by the scowling apparachik wearing a faded Babushka. Choose freedom every time.

[2] Certainly a scientist could act as an entrepreneur prospector and create a product even though no current desire exists. But if they fail to meet future needs, they will suffer financial loses. The current system does not discipline the scientist since government purchases the product whether the education consumer wants it or not.

Friday, June 29, 2007

The market test

The problem with the analysis below is this: The voucher program passed the market test -- parents like it.

According to the dictum of economist Robert Coase, if you torture the data long enough it will confess to anything. Suspect the data, whether in the form of results or surveys. Respect the choice of parents who always want the best for their children.

That said, vouchers do not create a market as the vouchers are free to parents; paid for by the taxpayer. When the supposed consumer does not have to pay for the good, no real market exists. Vouchers and charters are simply a means of playing free market.

Yet the premise of the article fails when it attempts to place data over choice.

June 26, 2007
Contact: Education Sector Communications Office,

Information Underload: Florida's Flawed Special-Ed Voucher Program
New Education Sector report cites problems with a popular voucher program for special-needs children.

Washington, D.C.— Florida's popular McKay Scholarships for Students with Disabilities Program promises to give parents seeking private placements for their special-needs children an alternative to the costly, complicated, and time-consuming federal process—a voucher they can use at a public or private school of their choice. And school choice advocates promote the McKay program as a model for other states and the federal government. Four other states have programs modeled after McKay, and at least a half-dozen others are weighing whether to follow suit.

But despite its promise and growing popularity, the McKay program has not yet proven that it works as either an adequate school-choice or special-education reform measure. In a new Education Sector report, Senior Policy Analyst Sara Mead identifies some serious flaws in the program, namely its lack of public accountability and dearth of information on student outcomes.

Mead argues that under the current structure of the program, taxpayers have almost no knowledge of how their money is being spent, and neither taxpayers nor parents have access to solid information about the performance of McKay schools. Mead suggests that expanding school options for students with disabilities is a worthy objective. But she cautions against using McKay as a model and advises policymakers on steps to take as they seek to replicate the program in other states.

Read "Information Underload: Florida's Flawed Special-Ed
Voucher Program" at:

This research was funded by The Annie E. Casey Foundation.

Education Sector is an independent education policy think tank devoted to developing innovative solutions to the nation’s most pressing educational problems. We are nonprofit and nonpartisan, both a dependable source of sound thinking on policy and an honest broker of evidence in key education debates throughout the United States.

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Passports: Travel and Travails

Obtaining a passport for a newborn is now an effort that requires sweat and blood, especially with travel day just around the corner. My favorite part of the process - at least the most ironic - was the message played on the passport status line. First you get the standard, "Your call is important to us." Next the warning that, "Do to unprecedented call volume, blah , blah , blah." Finally, the click as you are disconnected. This was the response I got 48 of the 50 times I called. And that's considered customer, or taxpayer, service.

The following is a note sent by Congressman Tiberi. What goes missing in all of this is that while the volume is certainly unprecedented, it was not unexpected. Remember, the law requiring passports for all foreign travel was passed three years ago. So, the agency was well aware that the volume was coming.

Yet, the government response to this issue is as expected; inept and inefficient.

Note: Even though we paid for expedited service, it took five weeks to obtain a passport. And, while FedEx website tracked each movement of our newborn's passport while it was in their possession, the Department of State website didn't provide a status of the passport until after we had already had it in hand, even though online status is included in the expedited fee. I wanted to report this breach of contract to the state's attorney general just for fun. Maybe if I get some time ... it would be fun to hear the response of one agency regarding another.

From Congressman Pat Tiberi:

Dear Friends,

The official start of summer this week, also means we’re in the midst of travel season. For many, traveling abroad this year has brought frustration and headaches because of new rules meant to make our nation safer and our borders more secure. In 2004, as part of the Intelligence Reform and Terrorism Prevention Act, a measure was signed into law that said Americans would need passports when traveling to countries in the Western Hemisphere. Previously, you could travel to places like Mexico, Canada, and the Caribbean without a passport.

The rule was implemented this year for passengers who travel by plane, and the amount of people needing passports has certainly overwhelmed the processing system. There’s a backlog of passports that are causing some people to miss their trips. I signed a letter to Secretary of State Rice asking her to explore possible
solutions to this problem. Since then, the U.S. Passport Agency has implemented a temporary waiver of the rule requiring passports to travel to nations in the Western Hemisphere. Instead, you need a receipt saying you have applied for a passport, a government-issued identification, and whatever documents the foreign country requires for entry. This still doesn’t help travelers waiting for passports, who are flying to places in Europe, Asia, Africa, or Australia.

This waiver is a short-term fix for a longer term problem. While the passport reforms do help make us safer, these passport backlogs are frustrating. Some type of solution needs to be implemented because; next year people traveling by car or by boat will need passports, as well. I supported fellow Ohio Congressman Steve LaTourette when he sponsored a measure that would push the implementation of these new rules another year and a half, so they would not go into effect until at least
June 2009. That measure was included in the House-passed Homeland Security
spending bill. It must still pass the Senate and be signed by the president to take effect. This would give the U.S. Passport agency more time to prepare for the expected increase in passport applications. I look forward to working with my colleagues to see if there’s more that can be done to help solve the backlog problem.

In the meantime, my staff and I will do our best to help you receive information about the status of your passport request. You can visit my website and fill out an online request form to ask for assistance. There are also links to information about
travel requirements, processing times, and the latest updates from the U.S. Passport Agency. Just visit my website at and click on the passport icon on the right side of the page.

Pat Tiberi

Member of Congress
Ohio's 12th District

Two points to consider


Inching Toward Commercial Freedom

by Llewellyn H. Rockwell, Jr.

It's not often I can say it, so enjoy: the Supreme Court did the right thing. It has reversed a century-old rule that criminalized retail price agreements. Good. Great. There are 10 million bad regulations to go.

Now, if you just happen to be reading over the Constitution, you will note that it does not give government power to tell manufacturers what the price of their products should be, or to regulate the terms of the contracts, much less provide a rationale for economy-wide price controls. In fact, if you were reading it for the first time, you might find the assertion that such a power exists to be preposterous on its face. Truly it is. The Constitution gives the federal government no power to regulate the details of economic contracts.

continue reading here ...


Impeach Cheney
The vice president has run utterly amok and must be stopped.
By Bruce Fein
Posted Wednesday, June 27, 2007, at 5:06 PM ET

Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president's insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney's multiple crimes against the Constitution clearly qualify.

continue reading here ...

Thursday, June 28, 2007

Stossel fights the good fight


Big-Government Conservatives
By John Stossel

"Reviving the Hamilton Agenda." That's the headline the New York Times gave David Brooks's recent column honoring Alexander Hamilton, the Founding Father perhaps least interested in limiting political power. Unlike his rival Thomas Jefferson, Hamilton favored strong central government and weaker states.

And he didn't trust the free market. He was an old-fashioned mercantilist -- he wanted politicians and bureaucrats to control private economic activities for the sake of special business interests.

In the true Hamiltonian spirit, Brooks also doesn't trust the market -- which means he doesn't trust free, peaceful individuals and private property. He writes, "We Hamiltonians disagree with the limited government conservatives [I assume Brooks has libertarians like me in mind] because, on its own, the market is failing to supply enough human capital."

Now David Brooks is a bright guy, so I wonder how he can blame the free market for failing in this way.

continue reading ...

Wednesday, June 27, 2007

Gouging you and me

Gary Galles has it exactly right: What are the feds doing by limiting the functions of the free market? Pandering, of course. But, that's what the feds do. Read the article by Galles to understand the chaos and havoc this new bill will create.

Tuesday, June 26, 2007

Economic Lessons Everywhere

My latest article published by the Ludwig von Mises Institute (

Economic Lessons Everywhere
By Jim Fedako
Posted on 6/26/2007
[Subscribe or Tell Others]

Traveling through Europe on a recent family vacation provided a number of situations that bring the ideals of Liberty, Freedom, and Property to light.

1. Pictures at the Eiffel Tower

Despite what is taught in public schools, individuals looking out for their own satisfactions will coordinate their means in a mutually beneficial manner. For many, visiting the Eiffel Tower is a once in a lifetime pleasure. The expense in getting there is indeed great, thus the desire for lasting images is also great. However, the crowds that stand on top of the tower move about so that everyone is able to take the pictures that will trigger memories for years to come. A moment or two standing in a spot providing a great backdrop, followed by the snap or click of a camera, and the photographer and subject step aside for the next visitor.

You might think that this graceful dance would require a government choreographer, yet that is not the case. The visitors easily move about to allow everyone the picture of a lifetime, graciously in fact. Indeed, other visitors are happy to take a picture for you. Man does not need government in order to satisfy desired ends, even in a world of scarcity.

2. Fear of the official

Certainly, I should have known better. But, how can anyone know every law, rule, and regulation? Just miles from the Italian border and apparent freedom, Swiss police stopped me for not having an autobahn tax sticker on the windshield of the car I was renting. That I rented the car in Paris did not satisfy the policeman. I had to pay the €70 fine; cash only.

This incident shows why people instinctively fear the government official. Even if you are truly conscientious, there is no way to know all of the millions of laws that are on the books. Each of us intuitively knows that we are guilty of some offense, no matter how silly. Whether it's blowing a whistle while riding a bike in Ohio, or traveling the Swiss highways without the proper sticker, we are all guilty of some offense, somewhere. And, it's the arbitrary application of the whims of officials that gets you every time.

3. Punching tickets in Cinque Terra

Cinque Terra is an area on the west coast of Italy comprised of five fishing villages that had been isolated from the interior for centuries. In fact, the first road connecting these villages with other cities and towns is only 50 years old. Due to their isolation and connection to the sea, the residents were proud, strong, and insular. Yet in a very short time, government has all but destroyed that character.

As tourists found Cinque Terra, the economy changed. The need to satisfy visitors has replaced the need for fish, resulting in an immigration of outsiders who are familiar with running hotels, shops, and restaurants. No longer do the boats venture into the waters of the Mediterranean. Instead, the descendents of the proud and independent are working make-work jobs that provide no real value to the economy. The town leaders, seeking to keep existing constituents from leaving the area for productive jobs elsewhere, employ residents in typical governmental style.

Now you have a situation where you buy a ticket for the cliff-hanging walkway between villages from one individual, turn to have it stamped by another, and then take a step to have the ticket reviewed by two more. You can be assured that each of these government employees is provided a government-decreed fair wage, though a wage not tied to their discounted marginal value product. A proud population of fishermen reduced to simple tax consumers. A sad situation indeed.

4. Zoning as a political hammer

Whether in the United States or in Italy, zoning is a hammer used to gain favors for elected officials. Because of zoning, it takes a property owner, a hotelier in this case, 18 months to obtain approval to post a small sign — on his own property nonetheless. You see, he is new to Cinque Terra, and the powers-that-be want to frustrate newcomers, especially those perceived as stealing jobs from the existing population. Just as in the United States, the politicians and bureaucrats have a host of means to slow or stop progress through the arbitrary application of zoning rules.

What is sold as a benefit to the community is actually theft from one group of residents in order to benefit the group of residents who grasp the elbows of those in power. And, in the end, the community — an artificial aggregation of people based on an arbitrary political line on a map — suffers, as improvements to the area go wanting due to investor fear of the political hammer that is zoning.

5. Who feeds Rome?

Driving the streets of Rome is a nightmare for the first time visitor. The streets are chaotic and crowded. Yet, every morning I ate a wonderful, fresh breakfast. You see, regardless of the obstacles, entrepreneurs will adjust their lives to satisfy consumer wants. If providing fresh bread means that the baker has to rise very early in order to account for delivery time in this crazy town, he will do so. His lack of sleep is never my concern. I simply want my bread served fresh at 8:00 in the morning. And, it's my wants that determine his lifestyle.

6. So, who will take out the garbage?

The streets and sidewalks of Rome are a mess, strewn with garbage and cigarette butts. Refuse containers exist at intervals, overflowing with remnants of consumer goods and producer waste. The occasional city employee sweeps the streets while the waste department empties the trashcans. But the sweepers simply move trash from side to side while the garbage men watch bags fall from cans, never to grace the compactor in the back of their truck. In both cases, the civil employees give no notice to the remaining garbage lying about; obviously cleaning sidewalks and streets is not in their job descriptions.

So, are the citizens of Rome dirty folks? Not if you consider the clean floors and shelves of the stores that line the trash-filled streets. This simple observation shows that private ownership provides a much better environment.

7. Children and the State

Social security is one of the biggest lies coming from the state. Such programs are supposed to provide for the old-age needs of citizens, without parents having to burden their children. But the state produces nothing. The severing of the timeless bond between parent and child can never occur. In order to fund such programs, the state steals the wealth of future generations — the children — in order to provide social security for the current generation — the parents.

The state's grandiose lie will be exposed as European countries continue to experience reduced birthrates and shrinking workforces. But it may be too late. The current fertile population of Europe has fallen for the belief that children are an expense, not an investment. Why assume the expense for additional children when the state will provide all? The answer to that question will be evident in a decade or so, as European economies collapse under the weight of obligations without a sufficient workforce.

8. Playing politics

Watching the presidential debates from afar allowed me the opportunity to reflect on what has to be the most inane comment coming from any politician. Time and time again, you will hear one candidate accuse another of "playing politics" with any number of issues; the war in Iraq being the most frequent subject. Yet politics is the only game that politicians play. Note to candidates and viewers: everything discussed and debated is political, regardless of the rhetoric.
9. The real chaos: Can't THEY get along?

While I was able to navigate the sites in Paris and the streets in Rome, the TV showed the true breed of chaotic species: the politician.

The level of rancor and bile is evident even when you do not understand the language. Certainly, I beeped my horn and got hot once or twice while driving, but my actions were nothing compared to the infantile ones displayed by those holding or seeking political power.

Moreover, all my actions went toward satisfying true wants and desires, even while respecting the property rights of others. This is quite different from the means employed by the political elite in order to satisfy the ends sought by those wanting the property of others.

10. The end of an empire

The remains of the Roman Forum, Coliseum, and the palaces of Palatine Hill, are proof that empires fall, despite the wonders created by the political class in attempts to placate the masses. In addition, these sites show that every empire needs a war for victories, and enemies for threats. Sadly, we have not learned these lessons.

As our political class prides itself on past, current, and future exploits, the masses pay for monuments that will one day tumble into the mud. Hubris is one human attribute that never goes wanting, and it increases with power and prestige. Wars and carnivals, or guns and butter, destroy the capital needed to keep society progressing. Either we learn our lessons from the Romans or we will be the archeological site of a subsequent generation.

Trading Liberty, Freedom, and Property for a marble obelisk that will not weather the storms of the ages is no inheritance for our children, or our children's children.


Jim Fedako, a former professional cyclist who lives in Lewis Center, OH, is a member of the Olentangy Local School District and maintains a blog: Anti-Positivist.

Send him mail. See his archive. Comment on the blog.

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Monday, June 25, 2007

What have we become?

In response to the comment below:

The nation of "Give me Liberty or give me death" has become a nation willing to sell its remaining remnants of Liberty for supposed security.

To think, men such as Patrick Henry risked their necks by making bold statements and signing declarations; men who desired Liberty to such a degree that they were willing to leave the security of the bosom of the most powerful country on Earth in order to strike out on their own, against the world and its evil empires.

Men who threw off the King's yoke of oppression, a yoke that was nothing compared to the levels of taxation and intrusion which we suffer today: "(A) long train of abuses and usurpations." Today, we cheer presidents who create "a multitude of New Offices, and sen(d) hither swarms of Officers to harass our people and eat out their substance." But, we are safe. Yea, we are safe from Liberty.

It now appears that we have become a nation that fears the responsibilities of Liberty; a nation that readily sells its past to the next demagogue promising a few more moments of supposed security. Yet, our Founders never considered security over Liberty.

In fact, this nation was founded by those who believed Liberty was more important than life itself. Men such as Benjamin Franklin, who said, "Those who sacrifice Liberty for security deserve neither." Once again, it appears that his pronouncement will be proven true.

Pick a nation that has fallen for a despot -- any nation, in any era -- and the key to the transfer from Liberty to slavery was indeed the populist call of security.

In addition, writers such as the one below are willing to loosen their grip on Liberty -- oh, they are willing to give Her away to those who claim allegiance to the Republican Party. Yet, any increase in centralized power will end up in the hands of the next Clinton/Obama White House. And when that happens, don't cry the evils of government. We will have done it to ourselves.

-- Jim Fedako

Anonymous has left a new comment on your post "A link for Cheney and others who have never read t...":

Let’s look more closely at the issue and frame it in its real context; and then contrast its implications against your charges:

Cheney has claimed for the last four years that his office is not fully part of the administration in order to exempt it from a presidential order regulating federal agencies’ handling of classified national security information, which the National Archives claims demonstrates a failure of proper security safeguards and jeopardizes the nation’s most sensitive security secrets.

Is his a specious argument? Yes. Harmful? Hardly. In fact, he is dutifully ensuring that national secrets that would otherwise be leaked and used by our enemies—both foreign and domestic (think “New York Times”, “ACLU”, congressional Democrats, and other enemies of the State)—remain secret. This is not speculation—it’s fact, demonstrable and supported by the many leaks of highly classified information we have seen in the last several years for which we have paid an added, unnecessary price in American and Iraqi lives.

And, of course, we all know how well the National Archives protected Top Secret reports, analyses, memoranda and other documents from Sandy Berger, who left guarded, “highly secure ‘SKIFs’ ” with dozens of original documents stuffed in his underwear and socks that were ultimately left underneath a trailer at a construction site (and subsequently lost) or destroyed.

But at its base, your charge is as static and blindly academic as those you rail against over and over on this blog. Economics, for example—using your favorite topic, is highly dynamic and any serious analysis must take into account behavior, which tends to foil positions that are staked purely in academia. The tenets that apply to economic theory also hold true in this—and any—argument, and you ignore them. You argue (academically) on powers and limits enumerated in the Constitution and do not recognize or account for the motives and behaviors of the politicians and bureaucrats who are the practitioners and stewards of those powers (the “behavior” variables). As we have seen time and again these last several years—regardless of what you think of the Iraq War—the administration’s critics in congress and in the media have released (in the case of Sandy Berger, destroyed) highly classified intelligence that has proven devastating to the national security of the Unites States, in general, and to the war effort in particular.

Seriously—who do you trust more with national security secrets? The administration or the New York Times? Because your argument ignores the dynamic of the equation—the “either/OR”—I have provided the “OR” here. To deny that at least some of the secrets Cheney is safeguarding (correct terminology) will not wind up in the press—resulting in yet more additional, unneeded America blood spilled—is to be as intellectually vapid or dishonest as the ideologues you so often criticize. This is not hysteria, but a conclusion supported by recent, historical fact.

Is Cheney bending the Constitution? Probably. Executive or Legislative-Constitutional infidelity is hardly a new phenomenon—it’s de rigueur in Washington, and always has been. And executive orders are not ratifications of the Constitution—they are presidential edicts that are often frivolous, and existing ones are routinely discarded as first official acts of incoming presidents. The constitutionality of the Executive Order has long been suspect, but is honored and tolerated by each of the Parties because they both rely on them. So much for hardwiring the fidelity of the Executive Order to the Constitution. By the way—which EO is Cheney violating? Is it 13129? No, that would be the EO to assassinate bin Laden…How about 13011? Nah….that’s the one Bill Clinton signed that created the CIA rendition program. Try finding support for those in the Constitution. I think you get my point.

Of what academic consequence is all of this? It offends the sensibilities of Paulites, Lefties and academics. Of what practical consequence is all of this? It ensures that vital national security data does not get in the hands of a press, activist congress and affiliated groups that have dedicated themselves to destroying the war effort—even if it puts our nation at risk.

I side with offending the sensibilities of the Constitutionalists on this one. As the Founding Fathers would understandably be aghast at some of the current conduct of the Executive Branch, I suspect they’d be terrified to witness the kind of official and sponsored sedition their document has been perverted to protect.

Take your pick.


1. I don't trust either party; neither should you.
2. Read a little from the Austrian School of Economics, not simply the neoclassical/Keynesian nonsense taught by tax-funded professors.
3. Read some Mises and Hayek to realize that you were not the first to discover the true motives of politicians and bureaucrats. Read what the Bible has to say regarding the desire for kings.
4. If you continue to accept the concept of a small-c constitution -- one that bends with the wind -- be willing to accept all that comes with it.
5. When Clinton/Obama play these types of tricks, please don't cry foul. What goes around, comes around -- and usually to a higher degree.
6. Don't play Republican Congressman and claim that only the Democrats raise taxes and spend our children into tax slavery. The Republicans doubled the amount of debt that my children -- and your children -- will have to bear. Yet, I'm certain that you gave THEM a pass.
7. Stand up for Liberty. Stand alongside The Founders and be terrified of the perversion of the Declaration and Constitution. Have a backbone and realize that this nation was founded by those who wanted to be protected FROM government, not BY government.
8. Or, simply allow things to continue on their current path. Feel safe and sound. Bush and Cheney hold the crystal ball, and can divine the future -- they are omniscient. They are keeping you safe, as they have only good intentions for the removal of your freedoms.
9. Rest assured that The Founders lived in a different period, a period where men would stand up against the encroachment of government. You, on the other hand, were born into an era where men seek the warmth of government to ease any fear; real or perceived.
10. Finally, you can explain to your children how you sold their birthright to the political hacks; all for the dream of security. I'm certain that your children will be proud of you as they work to pay the debts for bonds on which we have forged their signature. "Yes, dear children, those are chains. But, at least the iron links will keep you safe."

Sunday, June 24, 2007

A link for Cheney and others who have never read the Constitution

The new "Where's Waldo" type game: "Where's the Vice President". Cheney and his thugs say that the VP is really in the legislative branch, but I still haven't seen that with me own eyes.

The Emperor and his Grand Marionette from Wyoming are getting rather tiresome to those -- such as myself -- who believe that it is THIS constitution that they sworn to uphold.

Hey Bush and Cheney, simply cross the Rubicon, torch the Reichstag, and end your little charade of US as a constitutional republic.

Saturday, June 23, 2007

A quote to consider

From the Future of Freedom Foundation (

Saturday, June 23, 2007

Empires cost money, and this one, as Garet Garrett wryly observed half a century ago, is unique in that "everything goes out and nothing comes in." The Romans exacted tribute from subject nations, seizing gold, slaves, and anything not nailed down. The American Imperium, on the other hand, is the Bizarro Empire, where U.S. taxpayers pay tribute to America's local satraps, such as Egypt and Israel – the two biggest recipients of our "foreign aid" program. We defend Japan and South Korea, allowing them to shelter under our military umbrella while they export finished goods to the American market – and lend us the money to build an empire of bases around the world.

— Justin Raimondo, “Rise and Fall of the Bizarro Empire” [June 18, 2007]

Thursday, June 21, 2007

Summer Reading List: Three great selections from

Here are three easy summer reads from the Ludwig von Mises Institute: Time Will Run Back, a novel by Henry Hazlitt; The Income Tax: the root of all evil from Frank Chodorov; and The Politically Incorrect Guide to Capitialism by Robert P. Murphy.

Time Will Run Back is a great novel that introduces, and reinforces, the concepts of the Austrian School of Economics and the free market. I recommend this book for everyone, seventh grade and up. Hazlitt puts all the concepts of Freedom inside a story that is interesting and enlightening. A great beach or airplane read.

Income Tax is the root of all evil, just as Chorodov neatly details. Pick an ill within our society and you can link it back to the income tax quicker than you can link yourself back to Kevin Bacon. Chorodov efficiently and effectively destroys the reasoning behind the income tax. Read the book and be better prepared to attack income tax nonsense and defend Liberty.

The Politically Incorrect Guide to Capitalism, by Robert Murphy, will challenge your views on a lot of relevant matters. Whimsical and informative.

These books and many others are available at The Store on

Wednesday, June 20, 2007

A note from Americans for Tax Reform

Don’t Allow the Senate to Raise Taxes on Energy!


H.R. 6, the so-called “CLEAN Energy Act of 2007” could be the first vote for a tax increase by the U.S. Senate in more than a decade! And, of great importance to you the taxpayer, a vote for this legislation is a violation of the Taxpayer Protection Pledge, signed by 43 Senators, 197 House members and President George W. Bush; a pledge not to increase taxes on hardworking Americans.

Following thirteen years without a tax increase on the federal level (1993), the Democrat-controlled House forced a vote in its first fifteen days to pass H.R. 6. Now, liberals in the Senate are up to the same old tricks.

H.R. 6 harms Americans as energy consumers and simultaneously squeezes your retirement savings. By taxing energy companies and supporting H.R. 6, liberals are going to increase the cost you pay at the pump, and decrease the value of your retirement funds.

Furthermore, H.R. 6 will repeal energy company’s ability to make deductions that would create $6.5 billion in new revenue. Further studies by the Joint Committee on Taxation show the actual tax increase to be much higher – closer to $12 billion.

This burden will crush the American “piggy-bank” and cripple your wallet. Say good-bye to consumer choice and hello to increased taxes as a result of H.R. 6.

Tell your Senator to vote ‘NO’ on H.R. 6!


Tuesday, June 19, 2007

A book by presidential candidate Ron Paul

A great book to understand the ideas of Ron Paul. You'd think you were reading a book by one of our Founding Fathers -- Jim Fedako

Peace, Commerce, and Honest Friendship
by Ron Paul
Foundation for Rational Economics and Education, 2007, paperback

According to Laissez Faire Books:

There's been a lot of buzz surrounding presidential candidate Ron Paul lately, though the Texas congressman has been on the radar screens of most libertarians for years. This volume collects more than a dozen speeches documenting Dr. Paul's fight against foreign intervention, ranging in topics from Lebanon in the 1980s, Kosovo in the 1990s, and Iraq in the 2000s.

These days, war critics tend to be met with the phrase "hindsight is 20/20." This collection shows that for at least one man in Washington, foresight is also 20/20. He consistently warns of the egregious disregard for liberty and the disastrous outcomes of foreign intervention. The most interesting speeches come in the year prior to the bombing of Iraq in 2003, during which Paul consistently argues against the invasion, warning that the war would be "fraught with danger of escalating into something no American will be pleased with."

This book is an excellent abridged history of America's foreign intervention during the past three decades, and a great account of one man's fight against those policies. And with Paul's popularity steadily growing, what better time to read up on the self-proclaimed "champion of the constitution"?

372 pages

A great weekly news magazine

Read World magazine for a Christian perspective on the news. Every media source has its own bias, so chose the bias that fits with your views. And since there are no "R" rated photos or stories, you don't have to be embarrassed leaving a copy around for kids and guests to review. The magazine contains nothing other than the national and world news reported from a Christian perspective. Refreshing, indeed.

Monday, June 18, 2007

Andrew Napolitano at FFF Conference, Part 1 of 4

Andrew Napolitano tells it all. Scary stuff. Vote for Ron Paul!

Consuming national security

My latest post at the blog:

Talk about internal conflict: On one hand, national security and all that, while, in the other hand, an ear of freshly-boiled, sweet corn. Sure, we all know that every kernel diverted from the production of ethanol is another seed of our destruction -- oil production, global warming, etc., yet it is Father's Day.

Do I forsake and say, "No thanks, the nation and humanity -- in a word, our future -- comes first." Or, do I enjoy the still-steaming cob? While philosophizing is fun -- little rhetorical games of logic and what-if, reality is another game altogether. Security or the crunch of ripened, sweet corn, boiled to perfection. What would you do? What could I do? I ate the corn.

It was absolutely delicious, and we're not even talking the dream of late summer: those ears of succulent Ohio corn, freshly snapped from towering stalks, and just a month or two from market.

Sorry readers of this blog, but I plan on driving my SUV throughout the summer, visiting roadside stands, and bidding against the Greens and the security freaks for those tasty cobs of delight. I'll make amends somehow, someway. However, I simply have to have my corn ... and I have to eat it too!

Friday, June 15, 2007

Education: Free and Compulsory

In the 70's, Murray N. Rothbard, the dean of the Austrian School of Economics, wrote a classic book on public education, Education: Free and Compulsory. What was true then is still true today. This quick read -- 57 pages -- spells out all of the ills wrought by a government monopoly of education. At $6, this book is a great bargain.

Thursday, June 14, 2007

Refuting the public goods argument

Yesterday's Columbus Dispatch has an excellent article that refutes the concept of a public benefit to public education. In "Better off today? Income figures say Ohioans aren't," the Dispatch details the changes in inflation-adjusted incomes by school district.

A quick perusal of the chart proves that no correlation can be established between quality of schools and changes in personal income of district residents. In fact, the typical resident of many so-called good districts is earning less today than 12 years ago. Add in increased property taxes and that typical resident is hurting indeed.

Of course, not everyone is hurting. But the typical taxpayer is being asked to support levies while reaping no financial rewards.

One additional point, no correlation exists between community support of schools and increased incomes.

None of this should be a shock as public education provides private goods to parents and students -- though inefficient and ineffective private goods -- as well as very personal goods to teachers and administrators; these individuals reaped great gains during this same period.1

Can you imagine the impact of a chart that showed teacher salary gains over the same period? Now, that would be a chart worth reviewing.

The average Dublin teacher saw a 12% increase in inflation-adjusted dollars from 1998 to 2005 -- the only years of teacher salary data available.

Wednesday, June 13, 2007

They're beginning to scare me

It appears we are one burning Reichstag away for the end of Liberty and Freedom ...

from The White House web site

National Security and Homeland Security Presidential Directive

White House News



Subject: National Continuity Policy


(1) This directive establishes a comprehensive national policy on the continuity of Federal Government structures and operations and a single National Continuity Coordinator responsible for coordinating the development and implementation of Federal continuity policies. This policy establishes "National Essential Functions," prescribes continuity requirements for all executive departments and agencies, and provides guidance for State, local, territorial, and tribal governments, and private sector organizations in order to ensure a comprehensive and integrated national continuity program that will enhance the credibility of our national security posture and enable a more rapid and effective response to and recovery from a national emergency.


(2) In this directive:

(a) "Category" refers to the categories of executive departments and agencies listed in Annex A to this directive;

(b) "Catastrophic Emergency" means any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions;

(c) "Continuity of Government," or "COG," means a coordinated effort within the Federal Government's executive branch to ensure that National Essential Functions continue to be performed during a Catastrophic Emergency;

(d) "Continuity of Operations," or "COOP," means an effort within individual executive departments and agencies to ensure that Primary Mission-Essential Functions continue to be performed during a wide range of emergencies, including localized acts of nature, accidents, and technological or attack-related emergencies;

(e) "Enduring Constitutional Government," or "ECG," means a cooperative effort among the executive, legislative, and judicial branches of the Federal Government, coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers among the branches, to preserve the constitutional framework under which the Nation is governed and the capability of all three branches of government to execute constitutional responsibilities and provide for orderly succession, appropriate transition of leadership, and interoperability and support of the National Essential Functions during a catastrophic emergency;

(f) "Executive Departments and Agencies" means the executive departments enumerated in 5 U.S.C. 101, independent establishments as defined by 5 U.S.C. 104(1), Government corporations as defined by 5 U.S.C. 103(1), and the United States Postal Service;

(g) "Government Functions" means the collective functions of the heads of executive departments and agencies as defined by statute, regulation, presidential direction, or other legal authority, and the functions of the legislative and judicial branches;

(h) "National Essential Functions," or "NEFs," means that subset of Government Functions that are necessary to lead and sustain the Nation during a catastrophic emergency and that, therefore, must be supported through COOP and COG capabilities; and

(i) "Primary Mission Essential Functions," or "PMEFs," means those Government Functions that must be performed in order to support or implement the performance of NEFs before, during, and in the aftermath of an emergency.


(3) It is the policy of the United States to maintain a comprehensive and effective continuity capability composed of Continuity of Operations and Continuity of Government programs in order to ensure the preservation of our form of government under the Constitution and the continuing performance of National Essential Functions under all conditions.

Implementation Actions

(4) Continuity requirements shall be incorporated into daily operations of all executive departments and agencies. As a result of the asymmetric threat environment, adequate warning of potential emergencies that could pose a significant risk to the homeland might not be available, and therefore all continuity planning shall be based on the assumption that no such warning will be received. Emphasis will be placed upon geographic dispersion of leadership, staff, and infrastructure in order to increase survivability and maintain uninterrupted Government Functions. Risk management principles shall be applied to ensure that appropriate operational readiness decisions are based on the probability of an attack or other incident and its consequences.

(5) The following NEFs are the foundation for all continuity programs and capabilities and represent the overarching responsibilities of the Federal Government to lead and sustain the Nation during a crisis, and therefore sustaining the following NEFs shall be the primary focus of

the Federal Government leadership during and in the aftermath of an emergency that adversely affects the performance of Government Functions:

(a) Ensuring the continued functioning of our form of government under the Constitution, including the functioning of the three separate branches of government;

(b) Providing leadership visible to the Nation and the world and maintaining the trust and confidence of the American people;

(c) Defending the Constitution of the United States against all enemies, foreign and domestic, and preventing or interdicting attacks against the United States or its people, property, or interests;

(d) Maintaining and fostering effective relationships with foreign nations;

(e) Protecting against threats to the homeland and bringing to justice perpetrators of crimes or attacks against the United States or its people, property, or interests;

(f) Providing rapid and effective response to and recovery from the domestic consequences of an attack or other incident;

(g) Protecting and stabilizing the Nation's economy and ensuring public confidence in its financial systems; and

(h) Providing for critical Federal Government services that address the national health, safety, and welfare needs of the United States.

(6) The President shall lead the activities of the Federal Government for ensuring constitutional government. In order to advise and assist the President in that function, the Assistant to the President for Homeland Security and Counterterrorism (APHS/CT) is hereby designated as the National Continuity Coordinator. The National Continuity Coordinator, in coordination with the Assistant to the President for National

Security Affairs (APNSA), without exercising directive authority, shall coordinate the development and implementation of continuity policy for executive departments and agencies. The Continuity Policy Coordination Committee (CPCC), chaired by a Senior Director from the Homeland Security Council staff, designated by the National Continuity Coordinator, shall be the main day-to-day forum for such policy coordination.

(7) For continuity purposes, each executive department and agency is assigned to a category in accordance with the nature and characteristics of its national security roles and

responsibilities in support of the Federal Government's ability to sustain the NEFs. The Secretary of Homeland Security shall serve as the President's lead agent for coordinating overall

continuity operations and activities of executive departments and agencies, and in such role shall perform the responsibilities set forth for the Secretary in sections 10 and 16 of this directive.

(8) The National Continuity Coordinator, in consultation with the heads of appropriate executive departments and agencies, will lead the development of a National Continuity Implementation Plan (Plan), which shall include prioritized goals and objectives, a concept of operations, performance metrics by which to measure continuity readiness, procedures for continuity and incident management activities, and clear direction to executive department and agency continuity coordinators, as well as guidance to promote interoperability of Federal Government continuity programs and procedures with State, local, territorial, and tribal governments, and private sector owners and operators of critical infrastructure, as appropriate. The Plan shall be submitted to the President for approval not later than 90 days after the date of this directive.

(9) Recognizing that each branch of the Federal Government is responsible for its own continuity programs, an official designated by the Chief of Staff to the President shall ensure that the executive branch's COOP and COG policies in support of ECG efforts are appropriately coordinated with those of

the legislative and judicial branches in order to ensure interoperability and allocate national assets efficiently to maintain a functioning Federal Government.

(10) Federal Government COOP, COG, and ECG plans and operations shall be appropriately integrated with the emergency plans and capabilities of State, local, territorial, and tribal governments, and private sector owners and operators of critical infrastructure, as appropriate, in order to promote interoperability and to prevent redundancies and conflicting lines of authority. The Secretary of Homeland Security shall coordinate the integration of Federal continuity plans and operations with State, local, territorial, and tribal governments, and private sector owners and operators of critical infrastructure, as appropriate, in order to provide for the delivery of essential services during an emergency.

(11) Continuity requirements for the Executive Office of the President (EOP) and executive departments and agencies shall include the following:

(a) The continuation of the performance of PMEFs during any emergency must be for a period up to 30 days or until normal operations can be resumed, and the capability to be fully operational at alternate sites as soon as possible after the occurrence of an emergency, but not later than 12 hours after COOP activation;

(b) Succession orders and pre-planned devolution of authorities that ensure the emergency delegation of authority must be planned and documented in advance in accordance with applicable law;

(c) Vital resources, facilities, and records must be safeguarded, and official access to them must be provided;

(d) Provision must be made for the acquisition of the resources necessary for continuity operations on an emergency basis;

(e) Provision must be made for the availability and redundancy of critical communications capabilities at alternate sites in order to support connectivity between

and among key government leadership, internal elements, other executive departments and agencies, critical partners, and the public;

(f) Provision must be made for reconstitution capabilities that allow for recovery from a catastrophic emergency and resumption of normal operations; and

(g) Provision must be made for the identification, training, and preparedness of personnel capable of relocating to alternate facilities to support the continuation of the performance of PMEFs.

(12) In order to provide a coordinated response to escalating threat levels or actual emergencies, the Continuity of Government Readiness Conditions (COGCON) system establishes executive branch continuity program readiness levels, focusing

on possible threats to the National Capital Region. The President will determine and issue the COGCON Level. Executive departments and agencies shall comply with the requirements and

assigned responsibilities under the COGCON program. During COOP activation, executive departments and agencies shall report their readiness status to the Secretary of Homeland Security or the Secretary's designee.

(13) The Director of the Office of Management and Budget shall:

(a) Conduct an annual assessment of executive department and agency continuity funding requests and performance data that are submitted by executive departments and agencies as part of the annual budget request process, in order to monitor progress in the implementation of the Plan and the execution of continuity budgets;

(b) In coordination with the National Continuity Coordinator, issue annual continuity planning guidance for the development of continuity budget requests; and

(c) Ensure that heads of executive departments and agencies prioritize budget resources for continuity capabilities, consistent with this directive.

(14) The Director of the Office of Science and Technology Policy shall:

(a) Define and issue minimum requirements for continuity communications for executive departments and agencies, in consultation with the APHS/CT, the APNSA, the Director of the Office of Management and Budget, and the Chief of Staff to the President;

(b) Establish requirements for, and monitor the development, implementation, and maintenance of, a comprehensive communications architecture to integrate continuity components, in consultation with the APHS/CT, the APNSA, the Director of the Office of Management and Budget, and the Chief of Staff to the President; and

(c) Review quarterly and annual assessments of continuity communications capabilities, as prepared pursuant to section 16(d) of this directive or otherwise, and report the results and recommended remedial actions to the National Continuity Coordinator.

(15) An official designated by the Chief of Staff to the President shall:

(a) Advise the President, the Chief of Staff to the President, the APHS/CT, and the APNSA on COGCON operational execution options; and

(b) Consult with the Secretary of Homeland Security in order to ensure synchronization and integration of continuity activities among the four categories of executive departments and agencies.

(16) The Secretary of Homeland Security shall:

(a) Coordinate the implementation, execution, and assessment of continuity operations and activities;

(b) Develop and promulgate Federal Continuity Directives in order to establish continuity planning requirements for executive departments and agencies;

(c) Conduct biennial assessments of individual department and agency continuity capabilities as prescribed by the Plan and report the results to the President through the APHS/CT;

(d) Conduct quarterly and annual assessments of continuity communications capabilities in consultation with an official designated by the Chief of Staff to the President;

(e) Develop, lead, and conduct a Federal continuity training and exercise program, which shall be incorporated into the National Exercise Program developed pursuant to Homeland Security Presidential Directive-8 of December 17, 2003 ("National Preparedness"), in consultation with an

official designated by the Chief of Staff to the President;

(f) Develop and promulgate continuity planning guidance to State, local, territorial, and tribal governments, and private sector critical infrastructure owners and operators;

(g) Make available continuity planning and exercise funding, in the form of grants as provided by law, to State, local, territorial, and tribal governments, and private sector critical infrastructure owners and operators; and

(h) As Executive Agent of the National Communications System, develop, implement, and maintain a comprehensive continuity communications architecture.

(17) The Director of National Intelligence, in coordination with the Attorney General and the Secretary of Homeland Security, shall produce a biennial assessment of the foreign and domestic threats to the Nation's continuity of government.

(18) The Secretary of Defense, in coordination with the Secretary of Homeland Security, shall provide secure, integrated, Continuity of Government communications to the President, the Vice President, and, at a minimum, Category I executive departments and agencies.

(19) Heads of executive departments and agencies shall execute their respective department or agency COOP plans in response to a localized emergency and shall:

(a) Appoint a senior accountable official, at the Assistant Secretary level, as the Continuity Coordinator for the department or agency;

(b) Identify and submit to the National Continuity Coordinator the list of PMEFs for the department or agency and develop continuity plans in support of the NEFs and the continuation of essential functions under all conditions;

(c) Plan, program, and budget for continuity capabilities consistent with this directive;

(d) Plan, conduct, and support annual tests and training, in consultation with the Secretary of Homeland Security, in order to evaluate program readiness and ensure adequacy and viability of continuity plans and communications systems; and

(e) Support other continuity requirements, as assigned by category, in accordance with the nature and characteristics of its national security roles and responsibilities

General Provisions

(20) This directive shall be implemented in a manner that is consistent with, and facilitates effective implementation of, provisions of the Constitution concerning succession to the Presidency or the exercise of its powers, and the Presidential Succession Act of 1947 (3 U.S.C. 19), with consultation of the Vice President and, as appropriate, others involved. Heads of executive departments and agencies shall ensure that appropriate

support is available to the Vice President and others involved as necessary to be prepared at all times to implement those provisions.

(21) This directive:

(a) Shall be implemented consistent with applicable law and the authorities of agencies, or heads of agencies, vested by law, and subject to the availability of appropriations;

(b) Shall not be construed to impair or otherwise affect (i) the functions of the Director of the Office of Management and Budget relating to budget, administrative, and legislative proposals, or (ii) the authority of the Secretary of Defense over the Department of Defense, including the chain of command for military forces from the President, to the Secretary of Defense, to the commander of military forces, or military command and control procedures; and

(c) Is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity by a party against the United States, its

agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

(22) Revocation. Presidential Decision Directive 67 of October 21, 1998 ("Enduring Constitutional Government and Continuity of Government Operations"), including all Annexes thereto, is hereby revoked.

(23) Annex A and the classified Continuity Annexes, attached hereto, are hereby incorporated into and made a part of this directive.

(24) Security. This directive and the information contained herein shall be protected from unauthorized disclosure, provided that, except for Annex A, the Annexes attached to this directive are classified and shall be accorded appropriate handling, consistent with applicable Executive Orders.


# # #


Tuesday, June 12, 2007

The Case for an Activist Judiciary

Another excellent offering from Laissez Faire Books ...

An excerpt from the new book
The Case for an Activist Judiciary

by Clint Bolick

Published by the Cato Institute
and reprinted here with permission
ISBN: 1933995025
List Price: $11.95
LFB Price Only $9.50

You Save 21%!

David's Hammer is the winner of the June 2007 Lysander Spooner Award for Advancing
the Literature of Liberty. For more information about the Lysander
Spooner Awards, CLICK HERE.

To go to our full review, or to go to purchase the book, CLICK HERE.

The excerpt, below, is the first chapter of the book, David's Hammer. Enjoy!


The Case for an Activist Judiciary

by Clint Bolick


The Constitution is not neutral. It was designed to take the government off the backs of the people.
—Justice William O. Douglas

From the beginning of my legal education, law for me has been intertwined with wine. Fittingly, my first U.S. Supreme Court argument was about the beverage that is the sublime joint product of nature and human ingenuity.

The case of Juanita Swedenburg, a proud woman, a farmer and entrepreneur who asks nothing of her government but to be left alone to mind her own business, is emblematic of the debate over the role of the judiciary in a free society. For when all else failed in Mrs. Swedenburg's quest to pursue her livelihood free from arbitrary government interference, she did what many Americans do when their basic rights are violated: she turned to the courts for justice. Whether the courts should help ordinary Americans like Juanita Swedenburg or should leave them to the mercy of democratic politics, even when politics are dominated by powerful special interests, is at the heart of the debate over what is pejoratively called "judicial activism."

For better or worse, the task of resolving such important matters is largely in the hands of lawyers. Law, as William Shakespeare understood, is not always the noblest of professions. Many lawyers make their living off the misfortunes and disputes of others. It is, for most, a mercenary profession: lawyers take their clients as they find them; they are obliged to zealously represent them; and winning, rather than justice, is the goal of most litigation. Lawyers draft the laws that make society so complex that lawyers are needed even for the simplest transactions; then lawyers make the simplest transactions so complex that lawyers are needed to decipher and, in the end, litigate them. The American legal system, designed of course by lawyers, is rigged so that even the most frivolous claims entail little risk for the lawyers pursuing them; indeed, the cost of defending against litigation is so great that "voluntary" settlements, which invariably entail a payoff to the lawyer prosecuting the action, are routine. Those costs are then passed along to all of us in the form of higher prices and fewer choices. Law is often such a racket that sharks are said to never attack a lawyer because of professional courtesy.

Most Americans seem to share my disdain for the legal profession as a whole. Among American professions requiring a doctorate, lawyers alone are deemed not entitled to use the "doctor" honorific, substituting instead the quaint term "esquire" following the name. By contrast, when I visit Germany, I am greeted as "Herr Doktor Professor" Bolick—a double honorific!—suggesting that at least in some countries, lawyers are deemed worthy of special respect. I'm not sure that idea would go over very well in our country.

And yet, as cynical as the legal system and profession can be, American law also has a romantic aspect. For all its flaws, law in a free society is the most powerful tool to correct injustice. In no other system in the world can the law so readily bring the mighty to account. In our nation, the courtroom is the great equalizer. A creative lawyer can change the world in one fell swoop. That was what the Framers of our constitutional experiment intended, for they understood that courts were necessary to provide the ultimate check against tyrannical government. Whatever maladies courts might visit upon American society, they continue to play that liberty-enhancing role today. Our judiciary is at once both a legacy of and prerequisite for our enduring free society.

I experienced that revelation during college. I had prepared for a career in teaching and politics. As I neared graduation, however, I discovered that neither profession was suited to an idealist. Our public education system, even in the late 1970s, was in serious decline; it required systemic change, which was not achievable one student at a time. My experiences with politics, both local and national, suggested that principle was, to say the least, not the fore-most consideration. At best, compromise in a forward direction seemed possible, but not sweeping change.

As I was discovering all that, I was also taking an undergraduate course in constitutional law. As the son of a welder whose formal education never went beyond eighth grade, I'm not sure I had ever even met a lawyer, and like most Americans, I held the legal profession in disdain. I took the course hesitantly, mainly because of the reputation of its teacher, Robert G. Smith, the esteemed Drew University professor emeritus of political science. Reading about cases such as Brown v. Board of Education was an epiphany: law used as the Framers intended could work revolutionary change in our society, bringing down systems of oppression such as the separate-but-equal regimes. Unlike politicians, lawyers arguing in the courts can hold fast to underlying principles and achieve change without compromise. The appeal was alluring, and before I knew it my Volkswagen Dasher was packed with all of my belongings on a cross-country trek to law school at the University of California at Davis.

Davis proved to be a harsh environment. Diversity was encouraged in everything except philosophical viewpoints. Having experienced a true liberal arts environment at Drew, I was astounded at the ideological homogeneity and hostility that permeated Davis. So I took my New Jersey palate to the nearby Napa Valley and found frequent sweet refuge in the head-spinning assortment of wines. The free tastings were perfect for a poor student's budget. And when my classmates in their collective wisdom chose Ralph Nader as our commencement speaker (after all, Jane Fonda, who had spoken previously, was a tough act to follow), I celebrated my liberation instead with my family in the more congenial surroundings of the Napa vineyards.

Armed with a law degree and somehow having managed to convince the California legal cartel that I was fit to practice, I immediately began suing bureaucrats for a living. Nine years later, in 1991, I cofounded the Institute for Justice (IJ) in Washington, D.C., with Chip Mellor. Many of the cases my IJ colleagues and I litigated are discussed in the following pages. Until I left IJ in 2004 to work full-time for school choice, I often said that my colleagues and I had the greatest jobs in the legal profession: we got to choose our cases, choose our clients, and not charge anything for our representation. Best of all, the people we sued were bureaucrats.

Although my interest in wine persisted as I embarked upon my legal career, some time passed before that passion dovetailed with my work. My curiosity was sparked, however, during a visit in the early 1990s to a small winery in bucolic Middleburg, Virginia. The proprietor was a striking older woman, Juanita Swedenburg, who owned and operated the winery with her husband. She produced several good wines, including a chardonnay with the toastiest nose I can remember. We got to talking, and Mrs. Swedenburg asked me what I did for a living. When I told her that, among other things, I challenged regulatory barriers to entrepreneurship, she exclaimed, "Have I got a regulation for you!"

Most states, it turned out, prohibited direct interstate shipments of wine to consumers. Thus, if tourists from another state visited Mrs. Swedenburg's winery and asked how they could obtain her wines back home, she would have to reply, "You can't." The only way Mrs. Swedenburg could sell her wines in other states would be to obtain a distributor, and most distributors have little interest in handling a few cases from an obscure Virginia winery. Nor was Mrs. Swedenburg inclined to hand over 30 percent of the retail price to a distributor who added nothing of value. For all practical purposes, Mrs. Swedenburg's small business was shut out of the market outside her home state.

As a descendant of settlers who fought in the American Revolution, Mrs. Swedenburg was outraged that such a stupid law could exist in a nation with the greatest free-enterprise system in the world. I wondered too. Indeed, the problem seemed widespread: I knew obtaining wines from some of my favorite small wineries in California was difficult. Virginia, it turns out, allowed direct shipment to consumers of wine produced within the state but not from wineries outside its borders.

But it would be several years before I could turn my attention to challenging the laws. I was extremely busy with other cases, and I knew my colleagues at IJ would greet with skepticism any case I proposed involving wine. I would have to demonstrate that some bigger principle was at stake than my passion for wine. Most of the cases at IJ involved states' imposing oppressive restraints upon their own citizens, which we challenged under the Fourteenth Amendment; the wine issue, by contrast, presented a trade barrier erected by some states against entrepreneurs in other states. In the meantime, I had to avoid Mrs. Swedenburg's winery lest she ask me why I wasn't taking on her legal albatross.

When finally I had a chance to turn my attention to the issue of direct interstate shipment of wines, I found that indeed a bigger principle was involved: freedom of commerce among the states, whose protection was one of the principal motivations for creating the U.S. Constitution. Under the Articles of Confederation, states were locked in debilitating trade wars. To protect their own industries, states would shut off imports from other states. If such actions persisted, the United States never would constitute a single economic union, which, in turn, would inhibit its prosperity. The Framers of the Constitution saw clearly that the states could not be trusted to resist protectionist temptations and that the remedy would be to confer authority upon Congress to regulate trade, thereby preventing states from enacting parochial trade barriers that impeded the national interest in free domestic trade. That understanding took the form of article I, section 8, of the Constitution, which delegated to Congress the exclusive authority to "regulate Commerce... among the several States."

Those few words, that seemingly simple command, have given rise to much of the debate over judicial activism during the past 75 years. The overarching question, one that I will touch upon later, is whether the Framers, in giving Congress the authority to regulate commerce, meant to limit that power to commerce or rather to allow Congress to regulate everything. Given that the latter construction not only ignores the plain meaning of the clause but also fundamentally transforms the Constitution from a charter of limited and defined powers into an open-ended grant of plenary national authority, the answer to the question seems obvious. But apparently it is not, as we shall see.

The question raised in the wine context was a different and also recurring one: what happens if the states enact trade barriers but Congress does not exercise its authority to regulate commerce in a given instance? In the face of congressional silence, may states create protectionist trade barriers? In other words, is affirmative congressional action necessary to effectuate the core purpose of the commerce clause, or is the clause self-executing so as to prohibit state-erected protectionist trade barriers of its own accord? The doctrine that the commerce clause by its own terms prohibits such trade barriers is referred to as the "dormant" or "negative" commerce clause.

This is the stuff of many a scholarly debate and so may make the eyes of mere mortals glaze over. Yet the answers to that question—like the answer to so many seemingly arcane questions of constitutional law—are of utmost importance to the likes of Juanita Sweden-burg. And not to her alone. More than two centuries after ratification of the Constitution, states still cannot resist the temptation to distort markets to benefit their own domestic industries to the detriment of out-of-state competitors. So that, as if to demonstrate the pre-science of the Framers, the constitutional guarantee of free trade in the Internet era is perhaps even more vital than it was in the founding era.

That is because of the Internet's revolutionary power of "disinter-mediation"—the ability of producers and consumers to meet and transact business in cyberspace, without the necessity, or added cost and inconvenience, of a middleman. In this way, the Internet is the greatest agent of consumer freedom in the history of mankind.

And yet, as Star Wars teaches, the Empire always strikes back. Some middlemen have adapted to and flourished in the Internet era. But others have resorted to the age-old tradition of seeking government protection against competition and innovation. Businesses selling products ranging from insurance to automobiles to contact lenses to caskets have flocked to their state legislatures to restrict or prohibit transactions over the Internet, thus preserving their economic hegemony and limiting consumer choices.

That was the situation with wine. Over the past few decades, the number of American wineries has grown to approximately 3,000 in all 50 states—the overwhelming majority of them small, family-run enterprises that produce only 2,000 or 3,000 cases each year. At the same time, the liquor-distributor industry experienced extreme consolidation, so that today a handful of behemoths dominate the multibillion-dollar industry. As a result, the distributors can distribute only a fraction of the tens of thousands of distinct wines produced each year in our nation alone. By contrast, the Internet offers the potential that middlemen cannot for matching consumers with their favorite wines, no matter how vast the choices.

Bans on direct shipment of wine are a relic of the post-Prohibition era, when states wanted to stifle organized crime by separating the production of alcohol from its distribution. They created mandatory "three-tier" systems of alcohol distribution: producer to distributor to retailer. In the unique context of wine, however, a number of states, eager to promote their own wine production, acted to allow direct shipping from in-state wineries. To protect in-state distributors, however, many states also acted to forbid shipping by out-of-state wineries directly to consumers. When IJ filed a lawsuit against New York in 1999 on behalf of Juanita Swedenburg, 31 states prohibited direct interstate wine shipments to consumers. Seven of them made such shipments a felony. The discriminatory trade barriers presented a textbook example of precisely the evil that the Framers intended to forbid when they placed the commerce clause in the Constitution.

The Federal Trade Commission studied the issue and found that "State bans on interstate direct shipping represent the single largest regulatory barrier to expanded e-commerce in wine." The states' professed regulatory concerns—protecting against underage access to alcohol and tax collection—all could be facilitated, the commission found, through regulatory actions short of discriminatory prohibitions against direct shipping.

The trade barriers raised the question of the scope of the "dormant" commerce clause, which in reality has never been dormant. Decades of cases have found that where a state regulates commerce not by one set of rules but by two—one regulatory regime that applies to out-of-state products and another, less-onerous regime for domestic products—the burden shifts to the state to demonstrate a compelling state interest that cannot be achieved through less-burdensome means. By that rule of law, many discriminatory trade barriers have been struck down over the years—effectuating the Framers' desire to ensure a free national market.

That doctrine likely would have resolved the matter in Juanita Swedenburg's favor if she were selling a product other than alcohol. But another constitutional provision—the Twenty-First Amendment, which repealed Prohibition—pertains directly to alcohol. That amendment prohibits the "transportation or importation into any State... for delivery or use therein of intoxicating liquors, in violation of the laws thereof."

For some, those words began and ended the debate. Where prohibited by state law, direct shipping of wine unquestionably encompassed the "transportation or importation" of "intoxicating liquors" into a state "in violation of the laws thereof." Therefore, some would argue that regardless of a state's motivation, its alcohol laws are protected by the Twenty-First Amendment.

Nevertheless, no Constitution would have existed for the Twenty-First Amendment to amend were it not for the constitutional guarantee of national economic union. The Twenty-First Amendment did not repeal the commerce clause. When faced with seemingly competing constitutional provisions, the proper role of courts, my colleagues and I argued, was to harmonize the two provisions, not to aggrandize one while draining the other of meaning.

The surface conflict between the commerce clause and the Twenty-First Amendment also raised a more fundamental question lurking beneath much constitutional litigation: is the Constitution a grant of government power to which rights are the exception or a recognition of individual rights to which government power is the exception? When faced with a dispute between an asserted freedom and an asserted government power, should a court indulge a presumption in favor of government power or individual liberty? The answer to that threshold question of constitutional interpretation would affect not only Juanita Swedenburg but also scores of other people whose rights are restricted by government power.

For some, the questions raised by the direct-shipping issue were quite easy. The first appellate judge to rule on the issue was Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit, a jurist who does not lack for self-assurance. Like many conservatives, Easterbrook doubts the doctrine that the commerce clause on its own accord prohibits protectionist trade barriers. For Easterbrook, the question presented was one of states' rights, which should triumph because Congress had not exercised its regulatory authority to prevent state regulation. In upholding Indiana's direct-shipment ban, the opening words of Judge Easterbrook's opinion clearly fore-cast the outcome: "This case pits the twenty-first amendment, which appears in the Constitution, against the 'dormant commerce clause,' which does not."

For others, the question was not so simple. The leading U.S. Supreme Court precedent was a 1984 case, Bacchus Imports v. Dias, in which the Court struck down a Hawaii law that exempted certain liquors produced in state from an otherwise applicable alcohol tax. The obvious purpose was to benefit domestic producers. (Ironically, the same Frank Easterbrook who later as a judge would disdain the dormant commerce clause argued the Bacchus case successfully for the challengers.) The Bacchus Court harmonized the commerce clause and the Twenty-First Amendment, noting that although the amendment's scope was broad: "One thing is certain: The central purpose of the [Twenty-First Amendment] was not to empower states to benefit local liquor industries by erecting barriers to economic competition. " For that reason, the Court held, "State laws that constitute mere economic protectionism are... not entitled to the same deference as laws enacted to combat the perceived evils of an unrestricted traffic in liquor." So if the courts applied Bacchus, the question in our case would be whether the state's ban addressed "the perceived evils of an unrestricted traffic in liquor" or whether in reality it constituted "mere economic protectionism."

The wine cases were characterized by remarkable cross-ideological alliances on both sides. On our side were prominent conservatives such as Kenneth Starr and Barbara Olson; on the other side, conservatives included Robert Bork, C. Boyden Gray, and Miguel Estrada. Our "free the grapes" legal team also included such liberal stalwarts as former Stanford Law School dean Kathleen Sullivan and University of Indiana lawyer Alex Tanford, who frequently litigated cases for the American Civil Liberties Union and was a debate opponent of mine on the school-choice issue. Conservative jurists, such as Judge Easterbrook of the Seventh Circuit and Richard Wesley of the Second Circuit, reached opposite conclusions from other conservatives, such as J. Michael Luttig of the Fourth Circuit and Danny Boggs of the Sixth Circuit; liberal judges such as Sonia Sotomayor of the Second Circuit were at variance with other liberal judges, such as Martha Daughtrey of the Sixth Circuit. Never before had I litigated an issue that transcended ideological boundaries as dramatically as this one did. Yet sharp lines of rhetorical demarcation existed: judicial "activism" versus judicial "restraint," and "states' rights" versus the supremacy of the federal Constitution and national economic union.

Although several cases raising similar legal claims would be litigated by various advocates en route to the U.S. Supreme Court, my colleagues and I decided to challenge New York's law. We chose New York for two major reasons: after California, New York's wine market is the largest in the United States, and its direct-shipment laws discriminated in favor of New York wineries and against out-of- state wineries. Notably, almost all of the New York wineries supported our lawsuit: although they enjoyed sheltered markets in New York, they were shut out from direct shipping to other states in retaliation for New York's ban on direct out-of-state shipping.

In challenging the New York regime, we were taking on the big boys. No sooner did we file our lawsuit than seven powerful interests intervened to help defend the law: the state's four largest liquor distributors, whose combined revenues exceeded one billion dollars annually; the package stores, which enjoyed a monopoly over the retail sale of interstate wine; the truckers' union, which enjoyed a monopoly over wine delivery; and the Rev. Calvin Butts, who was concerned about underage access. Not all of the interests on the other side seemed entirely savory: the press reported that around the time of our lawsuit, 50 Federal Bureau of Investigation agents raided one of the liquor distributors seeking evidence of mob connections. The massive orchestrated special-interest intervention in our case suggested that New York was the chosen field of battle in which the liquor-distributor behemoth would take its stand.

The New York litigation made for unusual adversaries as well. The lead lawyer for the liquor distributors was Randy Mastro, a prominent New York lawyer who had served as deputy mayor under Rudolph Giuliani. On our side as an expert was John Dyson, a businessman who owned wineries in Italy, New York, and California, and who was another Giuliani deputy mayor. Adding to the ironies was that Mastro's late father had been a political science professor of mine at Drew University and frequently had urged that some day I needed to work with Randy. When I met Randy, who bears an uncanny physical resemblance to his dad, I told him I didn't think that this encounter was what his father had in mind. The high-priced, big-firm lawyers on the other side tended to be the types who judged other attorneys by their hourly rates. Given that my colleagues and I at IJ charged our clients nothing, I can only imagine the disdain in which our adversary lawyers held us.

The quality and temperament of a judge can make all the difference in a case. We were very fortunate that the judge assigned to us was Richard Berman, an appointee of President Bill Clinton who was bright, courteous, thoughtful, thorough, and judicious. During our first court hearing, my colleague from IJ and I were literally surrounded in a semi-circle by a phalanx of 18 lawyers representing the combined interests on the other side. Judge Berman smiled when I likened it to David versus Goliath. In subsequent hearings, most of our opposing lawyers sat discreetly in the gallery, but the image was indelibly established.

Throughout the trial-court litigation, the lawyer for the state barely made a peep, ceding the law's defense to the liquor distributors' lawyers. They in turn litigated the case with such bombast and hyperbole that it would have driven me crazy if I had not grown up among similar personalities in neighboring New Jersey. The spectacle of the liquor distributors' tail wagging the state's dog was enormously helpful to us in demonstrating that the purpose and effect of the laws were protectionism, not public health and safety.

That was the case we put on. We showed that the original three-tier system was adopted at the behest of the liquor distributors. When the legislature in the 1990s overwhelmingly passed direct-shipping legislation, the liquor distributors urged Governor George Pataki to veto it, and he did, citing concerns for domestic industry and tax revenues. As for underage consumption, we produced state records showing that the relevant numbers were 16,000 and zero—the first being the number of reported instances of minors' obtaining alcohol through the three-tier system over a five-year period; the second being the reported instances of minors' obtaining alcohol over the Internet during the same period. I told the judge that if my college-age son could navigate the system by ordering wine over the Internet using a credit card, satisfying the winery that he was over 21, arranging to accept delivery on campus of a box labeled "Alcohol: Adult Identification Required," and producing another acceptable identification upon delivery, I would celebrate his ingenuity with him over a glass of cabernet. Unfortunately, the existing system allows minors far too many ways to obtain alcohol for them to have to resort to the far more cumbersome process of ordering it over the Internet. Ultimately, our case rested on the logic that whatever rules applied to deliveries to consumers by in-state wineries ought to apply also to deliveries by out-of-state wineries; the fact that two sets of rules applied rather than one demonstrated that the purpose and effect of the laws were protectionist.

Our adversaries relied heavily on the underage access issue, offering evidence that states with permissive direct-shipping laws also reported higher rates of binge drinking on college campuses. (It was hard to imagine college students guzzling Mrs. Swedenburg's chardonnay at a keg party, but maybe kids have become more sophisticated since my college years.) Without a shred of irony, the liquor distributors joined forces with Christian conservatives and groups committed to alcohol abstinence. The distributors argued that state authority under the Twenty-First Amendment was plenary and that Congress had affirmatively given states the power to ban direct interstate shipping.

Judge Berman didn't buy it. "That the New York direct shipping ban on out-of-state wine burdens interstate commerce and is discriminatory (on its face) is clear," he ruled. Moreover, he found that "the direct shipping ban was designed to protect New York State businesses from out-of-state competition." Applying the Bacchus decision, he concluded that the Twenty-First Amendment provided no shelter because the "State has not established that its goals cannot be accomplished in a nondiscriminatory manner." As a result, he ordered that the state allow out-of-state direct shipment of wine on the same terms and conditions as in-state direct shipping.

The liquor-distributor empire quickly struck back, filing an appeal in the U.S. Court of Appeals for the Second Circuit. That court reached a starkly different result on states' rights grounds. Recognizing that a majority of the Second Circuit's sister courts had ruled in favor of challenges to discriminatory wine shipment bans, Judge Richard Wesley found that those decisions had "the effect of unnecessarily limiting the authority delegated to the states" under the Twenty-First Amendment. Moreover, the court found that no real discrimination took place, for "all wineries, whether in-state or out-of- state, are permitted to obtain a license as long as the winery establishes a physical presence in the state." The state's interest, in reality, was not protectionism but in ensuring "accountability," which could be accomplished by requiring a physical presence of all wineries.

The "physical presence" requirement sounded benign—who could object to a business establishing a physical presence in the state in order to ensure "accountability" to the state's legitimate regulatory regime? In practice, however, that jurisprudential innovation could have created the exception that would have swallowed the commerce clause. A small winemaker like Juanita Swedenburg would have found opening and fully staffing a warehouse just to gain the privilege of selling a few cases of wine in New York economically impossible. Multiply that burden by 50, if other states followed suit, and the rule would close markets to small wineries all across the United States. The decision boded chilling ramifications far beyond wine: if every state could require a physical presence upon the pretense of health or safety concerns, the vast promise of the Internet to expand consumer freedom would halt in its tracks. After all, the whole point of the commerce clause was that an enterprise in one state could do business in another state without having to move there. The state's legitimate regulatory interests with regard to alcohol could be achieved in less onerous fashion, such as requiring a license in order to do business. Indeed, federal law provides plenty of potent tools to enforce state alcohol laws against out-of-state companies.

Because the Second Circuit decision conflicted with decisions from other circuits, prospects for review by the U.S. Supreme Court looked promising. But once the high court took the case—along with a companion case from Michigan, in which the trial court had upheld the direct-shipment ban but the appeals court had struck it down—the prospects didn't seem especially encouraging. Although we had the leading precedent on our side, 20 years had passed since the Bacchus decision. In that time, all five of the justices in the majority were gone, while the three dissenters (Chief Justice William H. Rehnquist and Justices John Paul Stevens and Sandra Day O'Connor) were still on the Court. Moreover, Justice Thomas believes no such thing as the dormant commerce clause exists and the rights often protected under that doctrine in fact were intended to be protected under other constitutional provisions. We tried to attract Justice Thomas's vote by including a separate claim under the privileges and immunities clause of article IV, section 2, of the Constitution, whose scope largely mirrors the commerce clause, but the Court did not accept review on that issue.

So we assumed that we began our trek to the U.S. Supreme Court with four likely votes against us and no certain votes in favor. If our math was correct, we would need to cobble together the votes of Justices Anthony Kennedy, Antonin Scalia, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—an odd-couple lineup that apparently never had been previously aligned in a 5-4 decision.

The uncertain endurance of the Bacchus decision allowed our opponents to return to basics and argue that state power under the Twenty-First Amendment was plenary. A "plain language" and states' rights approach might appeal to Justice Scalia and tip the balance against us. We countered with a strong historical analysis showing that the Twenty-First Amendment had merely restored the status quo prior to Prohibition—and that discrimination and protectionism were not encompassed within the states' powers to regulate alcohol at that time. We also had the benefit of a strong record of protectionism in the New York case and of the Federal Trade Commission report that laid waste to the states' defenses relating to underage access and taxation.

While the case headed toward argument before the Supreme Court, both sides made their cases in the court of public opinion. State attorneys general launched high-profile sting operations ostensibly to demonstrate how easy it was for underage buyers to game the system. (Revealingly, the sting artists never ordered successfully from wineries, but from retailers, who were licensed by the three-tier system yet avoided its regulations.) On our side, the feisty and highly quotable Juanita Swedenburg was the poster-child small entrepreneur fighting for her right to earn an honest living. As the argument approached, Mrs. Swedenburg's husband and business partner, Wayne, passed away, depriving her of a major source of strength and support. But if her determination ever flagged, I never saw it.

In our side's oral argument, former Stanford Law School dean Kathleen Sullivan argued the Michigan case, and I represented the New York plaintiffs. To buttress their states' rights argument, New York and Michigan jettisoned the liquor distributors' lawyers, who had done the heavy lifting in the earlier rounds, in favor of the solicitors general from the two states. But the move didn't work, because the states' lawyers insisted that their powers under the Twenty-First Amendment were without limit, essentially asking the Court to overrule Bacchus. Even Justice O'Connor, who had dissented in Bacchus, seemed taken aback by the states' extreme position. For my part, I pointed out the heavy influence of protectionism in New York's regulatory scheme and assailed the "presence" requirement. Were the justices to visit Swedenburg Winery (which I cheerfully encouraged them to do), they could find Mrs. Swedenburg harvesting grapes, tending the tasting room, bottling wine, and filling orders. The thought that she could afford to open a New York operation in order to sell a few cases of wine there was ludicrous.

In the end, the Court divided 5-4 in striking down the discriminatory Michigan and New York laws. Justice Kennedy, writing for the majority that included Justices Scalia, Souter, Ginsburg, and Breyer, declared that the effect of the laws was "to allow in-state wineries to sell wine directly to consumers in that State but to prohibit out-of- state wineries from doing so, or, at the least, to make direct sales impractical from an economic standpoint." Such laws, the Court ruled, "deprive citizens of their right to have access to the markets of other States on equal terms." The Court flatly rejected the physical presence defense, remarking that "for most wineries, the expense of establishing a bricks-and-mortar distribution operation in 1 State, let alone all 50, is prohibitive." Nor did the Court credit the states' underage access or taxation arguments, finding that less-onerous alternatives were available to service legitimate state interests. The Court's legal holding was simple—"state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause"—and the New York and Michigan laws violated that principle, with no convincing justification.

For Mrs. Swedenburg, the victory was sweet vindication. As fate would have it, although I spoke to her the day the decision came down, I didn't actually get to see her until months later, whereupon I received what must have been the biggest hug of my entire life. The case was a vindication of the American legal system as well. In few other nations could one small entrepreneur prevail over the powerful combination of massive commercial interests and government. Her triumph demonstrates that ours truly is a nation governed by the rule of law.

Indeed, that spectacle—the judicial redress of injustice visited upon an individual by the government—is a hallmark of a free society. By contrast, the New York Times recently profiled the failed attempts of Chinese citizens to challenge oppressive laws, years after the legal system in Communist China ostensibly was changed to allow such actions. That Americans can bring down tyrannical laws through peaceful judicial action, while people in many other countries cannot, is testimony that ours remains among the freest nations in the world.

Yet plainly, not everyone would agree that such judicial power is a positive phenomenon. The legal clash in the direct-shipping cases between the small wineries and the liquor distributors is a microcosm of the debate over the proper role of the courts in the American constitutional system. Those who assert that courts should defer to democratic processes would consign the likes of Juanita Swedenburg to defeat and despair, while rendering a nullity the constitutional promise of freedom of commerce. There is no way that Juanita Swedenburg could take on the powerful liquor distributors in the political arena. Indeed, she is not even a citizen of the state in which the laws that constrained her opportunities were enacted. New York wineries had succeeded in gaining exemptions from the onerous direct-shipment laws for themselves, but outsiders like Juanita Swedenburg—even banded together in a trade association and aligned with New York consumers who wanted to purchase their wines—were no match in the legislative arena against the powerful liquor-distributor oligopoly and its lobbyists and political contributions.

So the only recourse for Juanita Swedenburg was through the courts, wielding the commerce clause, which was made part of the Constitution precisely to protect the ability of people like her to engage in commerce throughout the nation. In the judicial arena, despite the resources arrayed against her, that proud Virginia farmer was able to prevail.

But many on both sides of the political spectrum—as reflected in the divergent judicial opinions on the direct-shipping issue in the lower courts and the Supreme Court—would argue that the courts should have deferred to the states and that the result constitutes raw judicial activism. Some conservatives would go even further and assert that courts have no business invalidating laws in the first place—that the entire enterprise of "judicial review" of laws is constitutionally illegitimate.

As I will discuss in the following pages, federal courts have over-stepped their constitutional bounds in many instances over the past two centuries. Judicial activism in many instances is inappropriate and presents a serious challenge to the rule of law.

But in our efforts to curb improper judicial activism, we should be very wary about throwing out the baby with the bath water. For better or worse, courts in a free society are the ultimate guardians of our most precious liberties. As Justice Ginsburg recently observed, courts provide a vital safeguard "against oppressive government and stirred-up majorities." Alone among the branches of government, the judiciary is charged with the vital responsibility of standing up for the rights of the individual against the government leviathan, no matter how broad the democratic mandate.

Were it otherwise, were we to indulge the recurrent impulse to curb the power of the judiciary to protect individual liberties, relying entirely instead on the willingness of elected and appointed government officials to restrain themselves in the exercise of their powers, the result for Juanita Swedenburg—indeed, for all of us—would be that the rights we hold dear under the Constitution would not be worth the paper on which they're written.

With a proper understanding of the limited yet essential role of the judiciary in a free society, we shall see that the judicial intervention reflected in cases such as Mrs. Swedenburg's is worthy of a hearty toast over a fine glass of wine.

[Footnotes have been omitted.]


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From David's Hammer by Clint Bolick. Copyright © 2007 by the Cato Institute. Reprinted here by permission of the author and the publisher.